Rightwing Justices Voice Hostility Against Social Science and Liberty in Wisconsin Gerrymandering Case

Equal Justice is not here. What, are you grilling a steak?

Identity of the perpetrator should not diminish the victims' liberty claims

Analyses of oral argument at the Wisconsin gerrymandering case, Gill v. Whitford, (U.S. Supreme Court), reveal persisting features of modern Republican social domination in federal litigation—anti-intellectualism and pale regard for citizen liberties, especially voting rights.

Put another way, the four rightest justices' posture of dumb, anti-Constitutional and hostile points to a four-Justice dissent next year in Gill at which only results-committed ideologues like Roberts, Thomas, Alito, and Gorsuch could arrive.

In Wisconsin in 2011, Republicans and only Republicans secretly engineered the gerrymandered state and congressional districting maps that all commenting parties in the political culture recognize as a means ensuring Republican power in the state legislature against political sentiment of the populace, except for the Republicans' State Senate's attorney Erin E. Murphy who said at orals, "you know, I would certainly dispute the premise that the decks are stacked here" in gerrymanders. (p. 29).

The Republican-drawn maps were found unconstitutional in 2016 by a three-judge federal panel.

This gerrymandered rigging of state democracy is an empirical fact, yet Neil M. Gorsuch for example, also played it deep-and-dumb at oral argument. [Gorsuch is performing the job for which he was appointed: Protect Republican interests against Americans, forcing one to wonder if this guy really has a clue about empirical investigation and raising the same credibility questions about the Supreme Court of the Untied States that Bush v. Gore and Citizens United present.]

Said Gorsuch at Oct. 3 orals addressing one set of proposed standards identifying an unconstitutional gerrymander: This standard is not a "real set of criteria," (p. 22). Wow, that's quick.

Erin Muphy's Law

Gorsuch later pretends to mystify straight-forward social science findings by comparing conclusions to seasoning a steak. "What is it that you want us to constitutionalize?" asks an incredulous or pretending-to be-incredulous Gorsuch. (pp 50-51). Nothing we can see, nothing we can do, nor anything should we do; that's for the political system, ignoring the clear First Amendment claims of the plaintiffs. [In the words of one of the Republicans' attorneys, Erin Murphy, extreme gerrymanders have an inherent competing social value anyway, by virtue that their extraordinary unfairness demonstrates the identity of the party in charge when the maps are secretly created. Said Murphy, asked about any social values a gerrymander may possess:  '[I]t produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.' ... Replied Sonia Sotomayor, 'I really don't understand how any of that -- what that means. I mean, it -- it's okay to stack the decks so that for 10 years or an indefinite period of time one party, even though it gets a minority of votes, can't get a minor -- gets a minority of votes, can get the majority of seats?'  (pp 28-29)]. This new Murphy's-law reasoning can perhaps be applied to other liberty claims that compete against laws and processes with the intent to benefit discrete party coalitions. Hurt by laws legislated by party-line votes? Now, you know who did this to you. In other words, the identity of the perpetrator diminishes the victim's liberty claim.

Gerrymandering Is Real

Today in Slate Magazine, Nicholas Stephanopoulos, professor at the University of Chicago Law School specializing in election law, spells out the criteria identifying an unconstitutional gerrymander, in simple elements so easy a caveman can get it, for the benefit of Gorsuch, Alito and Roberts, [and Clearance Thomas, though Thomas doesn't speak or ask questions; he silently grunts disapproval at liberty claims]. (See also Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case.]

Writes Stephanopoulos this morning:

As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a 'steak rub.' That is, it should not be imprecise and opaque in its makeup: 'I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.'

In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:

1. Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.
   
   
2. Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.
   
   
3. Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.
   
   
4. Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that satisfy the state’s legitimate redistricting criteria. The challenged plan’s asymmetry is unjustified only if it exceeds that of most of the simulated maps.

Under this approach, there would be some easy cases, like the Wisconsin State Assembly plan at issue in Whitford. This plan’s authors admitted its pro-Republican intent. Its partisan asymmetry is worse than that of any map nationwide between 1972 and 2010. Its asymmetry would persist even if there was a massive Democratic wave. And its asymmetry is larger than that of any simulated assembly map. Conversely, it’s clear a plan would be upheld if it was designed through a bipartisan or nonpartisan process, if its asymmetry was historically small, if its asymmetry would disappear under slightly different electoral conditions, or if it was no more asymmetric than most simulated maps.

In playing dumb, social dominators like Gorsuch, Alito Roberts and Thomas continue a long, sordid tradition in federal litigation of liberty claims the last 65 years. Unequal public schools? Public accommodation of ethnic minorities? Housing discrimination? Equality of law and processes? Voting? What? Do we litigate every public functioning and process if someone makes a liberty claim?

Yes we do, it's a civil liberties thing. In this case, a First and Fourteenth Amendment thing.